Foreign Service Directives – FSD 39 – Health Care Expenses

Background

The grievor is employed at Department Z and was initially posted to City A, Country G from September 2014 to August 2018. The duration of the posting was twice extended. The last letter of offer for the grievor’s posting to City A, which indicated an extension until August 2020, was signed by the grievor in February 2019. On October 29, 2018, the grievor sought clarification from the Public Service Health Care Plan (PSHCP) assistance services with respect to the coverage for in vitro fertilization (IVF) for the grievor and the grievor’s same-sex spouse. It was indicated to the grievor that, under the PSHCP, in vitro fertilization benefits are covered for PSHCP members who suffer from bilateral tubal blockage.

On March 13, 2019, the grievor sought clarification from the Department as to whether the Foreign Service Directives (FSD) would cover the IVF expenses that are covered by the provincial health insurance plan. According to the grievor, the provincial plan covers one treatment cycle per patient including the transfer of all viable embryos. The grievor also mentioned having started the consultation process in Province D and that they intended to proceed in Province D. The Department indicated that there is no provision in the FSD that would cover reimbursement of such expenses for the grievor’s situation. As such, the grievor filed a grievance on April 9, 2019.

Grievance

The employee is grieving the refusal by the Employer to reimburse expenses related to in vitro fertilization and is stating that the refusal constitutes a violation of the principle of comparability inherent to the Foreign Service Directives. Specifically, the grievor has been improperly denied the same level of health care as a person that is a resident of Province D.

The grievor further states that this amounts to discrimination on the basis of sexual orientation, a prohibited ground under section 3 of the Canadian Human Rights Act (CHRA) as well as article 41 of the Foreign Service collective agreement.

Bargaining Agent Presentation

The Bargaining Agent representative indicated that despite the information provided to the grievor by the representative of the PSHCP administrator and the FSD advisor, Province D provides for IVF coverage for anyone under 43 years of age who resides in Province D and holds a valid provincial health insurance plan card without reference to blocked fallopian tubes.

The Bargaining Agent representative explained that the purpose of FSD 39 is to provide financial assistance to employees who incurred health care expenses outside of Canada, in excess of those permissible under the PSHCP. It was therefore submitted that by failing to provide said financial assistance, the Department has failed to treat the grievor within the intent of the Directive.

The Bargaining Agent representative further argued that the Department has failed to satisfy the principle of comparability. If not for the fact that the grievor was serving the Employer abroad, the grievor and the grievor’s spouse could have benefited from IVF treatment despite their lack of fallopian tubes.

Additionally, the Bargaining Agent representative submitted that the Department’s treatment of the grievor constitutes discrimination on the basis of sexual orientation, a prohibited ground under both Section 3 of the CHRA and Article 41 of the Foreign Service collective agreement.

Based on the above, the Bargaining Agent representative recommended that the grievance be upheld.

Departmental Presentation

The Departmental representative explained that coverage for IVF under the PSHCP is only provided for patients suffering from a bilateral tubal blockage. FSD 39.1.1 stipulates the criteria under which expenses in excess of those covered under the PSHCP may be covered. It was therefore submitted that the expense in question must first be eligible for coverage under the PSHCP before FSD 39.1.1 may be applied. Consequently, as the grievor is not eligible under the PSHCP, FSD 39.1.1 does not apply.

The Departmental representative also indicated that as of December 21, 2015, IVF is no longer covered under the provincial plan. IVF, among other treatments, is now funded as an uninsured service through Transfer Payment Agreements with specified clinics.

The Departmental representative noted that Section 15.3 of the NJC By-laws stipulates that the NJC grievance procedure does not apply to claims or coverage under the PSHCP. Rather, a separate and distinct appeal procedure is provided under the PSHCP.

The Departmental representative concluded by stating that the grievance is beyond the scope of the FSD. The PSHCP appeal procedure is the appropriate recourse mechanism as there is no mechanism for reimbursement under the FSD. Furthermore, it is the PSHCP criteria that has rendered the option for reimbursement impossible.

Executive Committee Decision

The Executive Committee considered the report of the Foreign Service Directives Committee which concluded that the grievor had been treated within the intent of the FSD. It was acknowledged that the Bargaining Agent raised Canadian Human Rights issues; however, these are beyond the scope of the Executive Committee’s mandate and there is a separate process in place for Canadian Human Rights complaints. As such, the grievance was denied.